II.4.a. - Code of Ethics: Engineers shall disclose all known or potential
conflicts of interest which could influence or appear to influence their
judgment or the quality of their services.
III.4. - Code of Ethics: Engineers shall not
disclose, without consent, confidential information concerning the business
affairs or technical processes of any present or former client or employer, or
public body on which they serve.
III.4.a. - Code of Ethics: Engineers shall not, without the consent of all
interested parties, promote or arrange for new employment or practice in
connection with a specific project for which the Engineer has gained particular
and specialized knowledge.
CONFLICT
OF INTEREST
RETURNING
RETAINER PRIOR TO ACCEPTING ANOTHER ASSIGNMENT
FACTS:
Engineer A, a forensic engineer, accepts a
plaintiff’s attorney’s retainer and receives selected file documentation from
the attorney su½seubsequently bills the attorney for the work, which includes a
review of the case documentation.
Because of an undisclosed disagreement between Engineer A and the
attorney, Engineer A ceases performing work without delivering a report to the
attorney or receiving additional payment for services. Thereafter, Engineer A returns the retainer
to attorney and all of the file documentation that the attorney had earlier
provided to Engineer A. Several months
later, Engineer A is approached by the defense attorneys in the same case, and
Engineer A accepts the assignment to function as one of the experts for the
defense.
QUESTION:
Was it ethical for Engineer A to accept the
assignment to function as one of the experts for the defense under the facts?
DISCUSSION:
Over the years, the Board of Ethical Review has
considered a number of cases involving the question of engineers providing and
performing forensic engineering services and the ethical issues that arise in
that context (see BER Cases 92-5, 82-6, 76-3).
These cases have involved such issues as performing such services on the
basis of a contingency fee, licensure requirements when serving as an expert
witness, the qualifications of the individual who is being considered to
perform the expert services, relationships with attorneys, and examining the
conflict of interest questions that may arise.
One of the most common ethical issues that face
engineers in their professional lives is the issue of conflicts of
interest. At one point in time,
engineering codes of ethics, including the NSPE Code of Ethics for Engineers,
specifically implored engineers to avoid all conflicts of interest. The basis for this position was that the
engineer cannot serve two masters and when faced with a conflict of interest,
the engineer must in all cases take steps to remove him or herself from such
conflicts. Among the concerns expressed
by supporters of this position was that engineers who were involved in conflict
of interest situations created a poor image for the engineering profession
because the issue raised the appearance of impropriety. However, over time, the engineering
profession came to the conclusion that conflicts of interests were an immutable
fact of professional engineering practice and that it was virtually impossible
for the engineer to, in all cases, remove him or herself from such
situations. As a result, Codes were
changed and engineers were implored to disclose all known or potential
conflicts of interest to their employers or clients, by promptly informing them
of any business association, interest or other circumstance which could
influence or appear to influence their judgment or the quality of their
services. Hand in hand with the issue
of conflicts of interest is the obligation of the engineer to not disclose
confidential information or represent adversarial interests concerning the business
affairs or a particular proceeding involving any present or former client
without his or her consent. (See NSPE
Code Sections II.4.a., III.4, III.4.a.).
Turning to the facts in the case, we conclude
that it would not be ethical for the engineer to accept the assignment in
question without the consent of all concerned -- consent that will almost
surely be withheld. Under the facts,
even though Engineer A has returned the retainer fee and the files back to the
plaintiff’s attorney who had originally retained him, Engineer A had already
reviewed the sensitive material relating to the plaintiff’s case and therefore
has an obligation to protect the interest of the original client -- the
plaintiff. It would not be possible for
Engineer A to purge himself of the knowledge of the information he initially
received from the plaintiff and therefore he would be damaging the interests of
his former client by working on behalf of the
defendant.
While there is nothing improper with returning
the full retainer fee under the facts, it would be equitable for an engineer to
retain a portion of the retainer to cover expenses incurred up to the point of
termination of the relationship.
CONCLUSION:
It was not ethical for Engineer A to accept the
assignment to function as one of the experts for the defense under the facts.
BOARD
OF ETHICAL REVIEW
James G. Fuller, P.E.
William
W. Middleton, P.E.
Robert
L. Nichols, P.E.
William
E. Norris, P.E.
Paul
E. Pritzker, P.E._r½_tr Jimmy
H. Smith, P.E.
C.
Allen Wortley, P.E. (Observer)
Donald
L. Hiatte, P.E., Chairman
* Note -- In regard to the
question of application of the Code to corporations vis-a-vis real persons,
business form or type should not negate nor influence conformance of
individuals to the Code. The Code deals
with professional services, which services must be performed by real
persons. Real persons in turn establish
and implement policies within business structures. The Code is clearly written to apply to the Engineer and it is
incumbent on a member of NSPE to endeavor to live up to its provisions. This applies to all pertinent sections of
the Code.